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Court of Appeal of Yukon COURT OF APPEAL OF YUKON Citation: Senft v. Vigneau, 2020 YKCA 8 Date: 20200327 Docket: 18-YU840 Between: Angela R. Senft and Michael E. Senft Respondents (Plaintiffs) And Audrey Vigneau and Susan Herrmann Appellants (Defendants) Corrected Judgment: The text of the judgment was corrected on the cover page and at paragraphs 40, 45, 46, 54, 57, 61, 68, 91, 96, and 105 on April 2, 2020. Before: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Harris The Honourable Madam Justice K. Shaner On appeal from: An order of the Supreme Court of Yukon, dated February 13, 2019, (Senft v. Vigneau, Whitehorse Docket 17-A0120). Counsel for the Appellants: D.F. Sutherland, Q.C. M. Hannam Counsel for the Respondents: G. Whittle M. Whittle Place and Date of Hearing: Whitehorse, Yukon November 13, 2019 Place and Date of Judgment: Vancouver, British Columbia March 27, 2020 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Mr. Justice Harris The Honourable Madam Justice K. Shaner Senft v. Vigneau Page 2 Summary: The respondents brought an action against the appellants for allegedly defamatory comments. The appellants pleaded the defence of fair comment and the respondents replied by pleading the appellants had acted with express malice in publishing the comments. The judge put the question of malice to the jury without first determining if the evidence established a probability of malice. The jury was directed to first make a finding on the question of malice before considering if the defence of fair comment was established. The jury found the comments were defamatory and that the appellants had acted with malice. They awarded the respondents general, special, aggravated and punitive damages. No finding was made with respect to the defence of fair comment. Held: Appeal allowed, awards set aside and a new trial ordered. The judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question of malice to the jury. The judge also erred in failing to instruct the jury that (i) express malice could not be considered unless they first determined the appellants had established the defence of fair comment on a balance of probabilities and (ii) if established, in order to defeat the defence, that malice was the appellants’ dominant motive in publishing the defamatory comments. Reasons for Judgment of the Honourable Madam Justice D. Smith: Introduction [1] This appeal raises issues about the jury instructions in a damages action commenced by the respondent plaintiffs, Angela and Michael Senft, for allegedly defamatory comments made about them by the defendant appellants, Audrey Vigneau and Susan Herrmann. The appellants pleaded the defence of fair comment. The respondents replied by pleading that the appellants had acted with malice in publishing the alleged defamatory comments. A successful claim of malice would defeat a successful defence of fair comment. [2] The civil jury hearing the action found that: (i) the appellants had made the alleged defamatory comments; and (ii) the appellants were actuated by malice when they published the defamatory comments. The jury was not asked to make a finding on whether the defamatory comments were on a matter of public interest but the judge instructed the jury on that issue. As the appellants do not raise it as a ground of appeal, I have inferred that they accept that the jury found the defamatory comments were made on a matter of public interest. The jury made no finding with Senft v. Vigneau Page 3 respect to the appellants’ defence of fair comment. In the result, the jury awarded the respondents damages of $377,367.62 against the appellant Audrey Vigneau, and $432,367.79 against the appellant Susan Herrmann. [3] After the jury had rendered its verdict, but before the formal judgment had been filed, the appellants applied to the judge for a determination on whether the evidence at trial established a probability of malice. The judge dismissed the application for reasons set out in Senft v. Vigneau, 2019 YKSC 23. [4] The appellants raise three grounds of appeal, each of which alleges an error of law. [5] First, relying on Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686 [Davies], the appellants submit the judge erred by failing to determine whether the evidence adduced at trial raised a probability of malice, before instructing the jury on the question of malice. They submit that, as a matter of law, the judge was required to make that determination before the issue could be put to the jury. [6] Second, they submit the judge erred in his instructions to the jury on the question of express malice by: (i) directing them to consider that issue before determining if the appellants had established the defence of fair comment; (ii) by failing to instruct the jury that, in order to defeat the defence of fair comment, the respondents had to prove not only that that the appellants had acted with express malice, but that malice was their dominant or overriding motive in publishing the defamatory comments; and (iii) by failing to instruct the jury that, in order to rely on a lack of honest belief to draw an inference that malice was the dominant motive, the lack of honest belief needed to relate to the meaning of the defamatory comments and not merely to any knowing misstatement of collateral facts. [7] Last, the appellants contend the judge erred in his instructions with respect to the heads of damages raised in the pleadings by failing to articulate the specific principles governing compensatory, special, aggravated and punitive damages and in failing to explain the countervailing social and democratic interests that mandate a Senft v. Vigneau Page 4 restrained assessment of damages. They claim this resulted in an unreasonable and perverse award of damages by the jury, constituting a reviewable error of law. [8] For the following reasons, I am of the view the appeal must be allowed, the award of damages set aside and a new trial ordered. A determination of whether the evidence adduced at trial raised a probability of malice should have been made before the jury was instructed on the question of malice. In the circumstances of this case, that error could not have been rectified after the verdict had been rendered. I am also of the view that aspects of the jury charge were in error. In light of my proposed disposition, I shall refer to the evidence only to the extent that is necessary to address the legal issues raised in those grounds of appeal. Background [9] Mr. and Ms. McRae were long-time friends of the Senfts. Mr. McRae died unexpectedly on November 26, 2007. At the time of his death, Ms. McRae was an elderly widow. [10] Thereafter, Ms. McRae became a client of the Regional Services division of the Department of Health and Social Services at Dawson City, Yukon Territory (“Yukon Health and Social Services”). Ms. Senft, in her then capacity as a social services worker, briefly assisted Ms. McRae with some financial matters related to Mr. McRae’s death. Later, Ms. Senft was promoted to the position of social worker. [11] The friendship between Ms. McRae and Ms. Senft continued after Mr. McRae’s death and they became very close. Ms. Senft assisted Ms. McRae with many of her daily chores and Ms. McRae looked upon Ms. Senft as a daughter. [12] Ms. McRae’s only significant asset was her residence in Dawson City. She had shared that residence with her husband for 29 years until his death. [13] After Mr. McRae’s death, Ms. McRae executed a will appointing Ms. Senft as her executrix and beneficiary of her entire estate. She named Mr. Senft as alternate executor. Ms. McRae also transferred title to her residence to Ms. Senft, Mr. Senft Senft v. Vigneau Page 5 and herself in joint tenancy on the understanding that the Senfts would obtain ownership and possession of the property only upon her death. The only family Ms. McRae had was an adult son, but they were estranged. [14] Several years later, Ms. McRae and the Senfts had a falling out. Ms. McRae had come to believe, incorrectly, that the Senfts wanted to remove her from her home and place her in a seniors’ residence so that they could move themselves into her home. The respondents in fact never intended to move into Ms. McRae’s residence until after Ms. McRae’s death. [15] Based on her misunderstanding, Ms. McRae sent a letter to the Senfts demanding that they sign a quitclaim deed of their respective interests in the residence, return all her papers, keys, disabled parking sign, and Ducks Unlimited shotgun. The Senfts returned her personal belongings but declined to comply with Ms. McRae’s demand that they sign a quitclaim deed. This prompted Ms. McRae to threaten to sue them. In response, the Senfts proposed that they would buy out Ms. McRae’s interest in the property or alternatively that Ms. McRae could buy out their interests. This led Ms. McRae to execute a new will naming Ms. Vigneau, who had been her support worker for many years, as her executrix and beneficiary. [16] Ms. McRae made it known that she was upset and angry over the dispute with the Senfts. Her allegation that the Senfts were trying to move her out in order to take possession of her home quickly came to the attention of the inhabitants of the community. As members of the community became aware of the matter, they voiced their concerns over what they understood had transpired between the parties, based on Ms.
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